' Mst. Sughran Ibrahim (respondent No,3) filed a suit for recovery of maintenance against her husband Arshad Ali (writ petitioner). It was contested; after framing relevant issues, recording evidence and hearing the learned counsel for the parties the said suit dismissed by Judge, Family Court (respondent No,2) vide judgment, dated 12-5-2000.
2. Aggrieved thereby Mst. Sughran Ibrahim, filed an appeal which was accepted by learned Additional District Judge, Vehari (respondent No,1) vide judgment, dated 21-4-2001. Judgment of the Family Court was set aside and Mst. Sughran Ibrahim was granted decree for maintenance allowance at the rate of Rs,1,500 per month since one year prior to the institution of her suit till the expiry of her period of Iddat.
3. The said order of Additional District Judge, Vehari is called in question in this writ petition as unjust, improper and illegal on the following grounds:-
(i) Findings of the Appellate Court are not based on evidence and that,
(ii) evidence was not adverted to at all wherefrom it was established that respondent No,3, was herself living apart from the writ petitioner without any reasonable cause and was not willing to perform her matrimonial obligations. It was for the said reason that the learned trial Court had held that she was not entitled to maintenance. This legal aspect was altogether ignored by the Appellate Court.
4. The petition is opposed by Rana A.D. Kamran, Advocate on behalf of wife (respondent No,3) who has during his arguments fully supported the impugned judgment.
5. Arguments heard. Writ petition and Annexures appended therewith perused.
6. In para. No,6, of the impugned judgment the learned Appellate Court has narrated the evidence produced by the parties during the trial and in the following para. Of the judgment he has mentioned that following facts were admitted in the evidence:-
(a) Marriage of the parties was solemnized on 22-3-1997.
(b) No issue was born from the wedlock.
(c) Arshad Ali is a school teacher and his salary is Rs,4,000 per month and,
(d) Father of Mst. Sughran Ibrahim (wife) had died and she is living with her mother and she also has a brother who is married.
7. In the next para. (para. No,8) of the impugned judgment the learned Appellate Court made certain observations regarding legal propositions such as it is the duty of the husband to maintain his wife during the subsistence of marriage and a divorced wife is entitled to maintenance for the period of her Iddat.
8. The learned Appellate Court in the subsequent para. (para. No,9), without assessing, analyzing and appraising the evidence, jumped to the conclusion that Arshad Ali was bound to maintain Mst.
Sughran Ibrahim and it was evident from record that he had not provided for her maintenance in the past, he then went on to hold that Mst. Sughran Ibrahim was entitled to maintenance allowance at the rate of Rs,1,500 per month since one year prior to the institution of her suit till the expiry of her Iddat period. It was also observed that suit for restitution of conjugal rights filed by Arshad Ali was dismissed on 12-5-2000 and on the very next day i,e, 13-5-2000 he had divorced Mst. Sughran Ibrahim.
9. The learned Judge, Family Court had dismissed the suit of the wife on the ground that she was living apart from her husband according to her own sweet-will; suit for restitution of conjugal rights filed by the . Husband was simultaneously tried alongwith the suit for maintenance and it was observed in that suit by the Family Judge that the wife was not ready and willing to live with the husband at any cost without any justification.
10. A perusal of the impugned judgment shows that neither the evidence on record was adverted to by the learned Appellate Court nor the reasons given by the learned trial Court for dismissing the claim of maintenance were looked into and disagreed with. In para. No,9 of the impugned judgment reference is made to the suit for restitution of conjugal rights filed by the writ petitioner which was dismissed on 12-5-2000. Judgment of the trial Court whereby suit for restitution of Cu' conjugal rights filed by the writ petitioner was dismissed is Annexure "C". Perusal thereof shows that reason for dismissing the said suit was that reconciliation efforts had failed because the wife (respondent No,3) was not willing to live with the husband (writ petitioner) at any cost and decreeing the suit for restitution would mean forcing the wife into a hateful union.
11. There is no caval to the proposition that a husband is bound to maintain his wife but right of maintenance of the wife is subject to the following conditions:--
(i) She must be faithful to the husband and obey his reasonable order, if she refuses herself to him, he is not bound to maintain her.
(ii) Wife is not entitled to maintenance when she lives apart from the husband except for non- payment of her dower in which case her right of maintenance continues even though she is living apart from him.
12. It was not the case of respondent No,3, that she was living apart due to non-payment of her dower debt.
13. Judge, Family Court, who had conducted the trial of both the cases had the advantage of observing the demeanour of the parties during the trial and the reconciliation proceedings conducted by him in the suit for restitution of conjugal rights which was simultaneously being tried and was decided alongwith the suit for maintenance on the same day.
14. His finding that respondent No,3, was not entitled to maintenance is based on evidence coupled with his personal observation of the demeanour of the parties hence said finding could not be brushed aside lightly without assigning any reason as was done by the Appellate Court.
15. The petitioner while appearing in the witness-box had deposed that he had tried his level best for the restitution; his bona fide was established as he had also filed a suit for restitution of conjugal rights and on its dismissal when there was no hope left for restitution, he had no alternative but to divorce respondent No,3. From the judgment of the Family Court it was abundantly clear, that respondent No,3, was of her own accord, living apart from the writ petitioner and was not willing to live with him at any cost. In the said circumstances she was not entitled to maintenance.
' Findings of the Appellate Court are not based on evidence; no reason is assigned in the impugned judgment for giving the findings; the impugned judgment is, therefore, arbitrary, fanciful and of no legal effect and it is declared as such. However, respondent No,3 is entitled to recover maintenance allowance during the period of her Iddat.
' With the above observations, the writ petition is partly accepted.